Marc Anthony Lowell Endsley v. Octavio Luna;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARC ANTHONY LOWELL
ENDSLEY,
Plaintiff - Appellant,
v.
OCTAVIO LUNA; et al.,
Defendants - Appellees.
No. 10-56323
D.C. No. 2:06-cv-06961-DSF-SS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted May 15, 2012**
Before: CANBY, GRABER, and M. SMITH, Circuit Judges.
Marc Anthony Lowell Endsley, who is committed to a state psychiatric
hospital facility, appeals pro se from the district court’s summary judgment in his
42 U.S.C. § 1983 action arising from his former hospital’s treatment program and
FILED
MAY 29 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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its requirement that patients remain in a common room if they choose not to
participate in treatment sessions. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo, Doe v. Abbott Labs., 571 F.3d 930, 933 (9th Cir. 2009), and
we affirm.
The district court properly granted summary judgment on Endsley’s
inadequate mental health treatment claim arising from the revocation of some of
his privileges because he failed to raise a genuine dispute of material fact as to
whether this decision by his treatment team was “a substantial departure from
accepted professional judgment, practice, or standards.” Youngberg v. Romeo, 457
U.S. 307, 323 (1982) (decisions by mental healthcare professionals are
“presumptively valid”).
The district court properly granted summary judgment on Endsley’s
excessive force claim because he failed to raise a genuine dispute of material fact
as to whether the force used was reasonable under the circumstances and did not
amount to punishment. See Hydrick v. Hunter, 500 F.3d 978, 997 (9th Cir. 2007)
(Fourteenth Amendment applies to excessive force claims by civilly committed
individuals, which requires that they not be subjected to conditions that amount to
punishment, within the bounds of professional discretion), vacated on other
grounds, 129 S.Ct. 2431 (2009); see also Graham v. Connor, 490 U.S. 386, 395

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n.10 (1989) (Fourteenth Amendment protects a pretrial detainee from excessive
force amounting to punishment).
The district court properly granted summary judgment on Endsley’s
conditions of confinement claim because he failed to raise a genuine dispute of
material fact as to whether conditions in the common room, where those patients
who chose not to participate in treatment sessions were temporarily held, amounted
to punishment. See Bell v. Wolfish, 441 U.S. 520, 537 (1979) (some losses of
freedom of movement and choice are inherent discomforts of confinement, and not
every disability imposed during detention “amounts to ‘punishment’ in the
constitutional sense”).
Endsley’s remaining contentions, including those regarding his state law tort
claims, are unpersuasive.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
AFFIRMED.

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